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Correspondents' Reports

JURIST's Turkey Correspondent is Virginia Brown Keyder, Lecturer in Law, Bilgi University, Istanbul. She is also a legal consultant for Mehmet Gun & Co.
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[Istanbul; Special to JURIST] The swearing in of Turkey痴 tenth president, Ahmet Necdet Sezer, on May 16, 2000, marked more than the end of an era (lasting 30 something years) of the personal politics of former President Suleyman Demirel. Mr. Demirel was an engineer; Mr. Sezer is a judge of impeccable reputation who openly supports freedom of expression. For the past two years he has been the chief justice of the Constitutional Court. He is, in short, a man of law whose inauguration may well constitute a long-awaited acknowledgment that modern states rely on the rule of law at least as much, if not more, than on the relentless construction of bridges, dams and nuclear facilities. Leaving aside the question of how much power Mr. Sezer will actually wield - no one expects him to play the same role as his predecessor - he faces formidable challenges in terms of guiding the ship of state into new legal waters. The promotion of freedom of expression is said to be high on his agenda.

Turkey was an early signatory to the 1950 European Convention on Human Rights. The provisions of that Convention on freedom of opinion and expression are presumably reflected in Articles 25 and 26 of Turkey痴 1982 Constitution (a translation of the full text of the Constitution is available at this website). As has often been noted here and abroad however, while the Turkish media may be awash with opinions of every sort, the arbitrary nature of prosecution for the expression of unwelcome ideas has had the effect of limiting these alleged freedoms considerably. Untold prosecutions under much-debated provisions of the Criminal Code, not to mention countless body blows to journalists and other outspoken citizens, provide some indication that freedom of expression is not a concept that has yet fully taken hold here. Official media censorship and criminal prosecutions facilitated by widely drafted exceptions to the principles of freedom of opinion and expression have had a strong chilling effect on what would constitute necessary elements of democratic life in most countries who share membership with Turkey in international organizations such as the Council of Europe and the OECD. Whether the March 16, 2000 decision of the European Court of Human Rights (Ozgur Gundem v. Turkey), which held that Turkey must not only allow freedom of expression but must take active steps to protect this right, will be implemented remains to be seen.

Recently, two issues involving legislative approaches to the question of freedom of expression have emerged. The first, in which the right to privacy also figures largely, involves a law published with little fanfare in the Official Gazette on August 1, 1999 concerning surveillance of citizens Internet communications; a further proposal, now reportedly before the Ministry of Defence, is designed to establish a body to oversee such surveillance (a draft, in Turkish, can be viewed at http://www.sucdosyasi.gen.tr). These measures will be discussed in depth in my next Report for JURIST.

The second legislative issue involves a widely-discussed proposed amendment to the Turkish Copyright Law (among many contained in a draft to be discussed in this column when they are enacted) designed to enforce compulsory bandrolls on books. Bandrolls have been applied to films, videos, cassettes and records since the late 1980s and computer programs since 1995. This certification procedure involves submitting all works to the Ministry of Culture along with authorizing contracts signed by the creators of the works, in order to obtain a hologram sticker for each work. These stickers must be affixed to all copies of the works before they can be put on the market.

The relationship between copyright law and censorship is one of the oldest known to modern legal man. State control over what is printed in return for enforcement of monopoly rights is a bargain as old as the printing press. Under the rubric of providing a 田reative incentive, the granting of monopoly rights has in the past often provided states with a powerful tool for sifting out dangerous and/or offensive ideas. Modern statutes have rarely maintained such provisions, however. Arguably, the 1886 Berne Copyright Convention, which prohibits signatory states from requiring compliance with any formalities as a precondition for copyright protection in a work (Art. 5[2]), had much to do with the demise of the censorship capabilities of copyright law. Some states, notably the US, have continued to require registration of works as a condition for pursuing legal remedies for infringement, though not for exercising the exclusive rights provided by the Copyright Act.

Although Turkey has had a modern copyright law since 1951, as in many countries, it was not widely used until the possibility of actual copying became a reality and political pressure (internal as well as external) for enforcement materialized. Given the traditional role of the Turkish state, it was not entirely surprising that when the first stringent enforcement rules for copyright protection of film and music through the use of official bandrolls were enacted in the late 1980s, the first paragraph of an implementing regulation read as follows:

(1) The objective of this regulation is to prevent the execution and display of the works of art consisting of cinema films, video bands, records and audio cassettes that may affect negatively the inseparable integrity of the state with its country, national sovereignty, republic, national security, public order, general ease, public interest, general ethics, general health and policy, that may hurt the national feelings or that are inappropriate to our national culture, customs and traditions. (Official translation courtesy of the Ministry of Culture).
The European Human Rights Convention permits six exceptions to the principle of freedom of expression: to protect national security, territorial integrity or public safety, prevention of disorder or crime, protection of health and morals, the rights and reputations of others and the judicial process. These are interpreted narrowly by the European Court of Human Rights, and their application strictly adheres to the principle of proportionality. Arguably, the above-cited provision goes beyond, possibly far beyond, those principles. It is therefore equally unsurprising that the proposed amendment providing criminal sanctions for failure to affix compulsory bandrolls to books has met with fervent hostility from Turkish publishing houses, newspapers and some authors. The mere mention of the restraints on freedom of expression enabled by such a provision has also rallied international support against the measure. More surprising, however, is the fact that the bandroll project has at the same time received the support of some of Turkey痴 best-selling authors, including figures such as Orhan Pamuk, one of a small but growing number of writers who have been among the most active in the fight for freedom of expression both in Turkey and abroad.

The requirement that bandrolls be affixed to books has been in effect since the 1995 amendments to the 1951 copyright law (Art. 81), and was restated in a 1998 regulation (Official Gazette June 30, 1998). Its application, however, was postponed, and in fact the practice has been for publishers to apply the bandrolls only at authors request, where actual piracy of a new work is anticipated. The forthcoming amendment to Article 81 creates a number of criminal offences involving the bandroll, punishable by three to six years imprisonment and a hefty fine. These offences range from failure to affix the bandroll on any work in circulation (even promotional) and misleading the Ministry of Culture regarding applicable works, to using bandrolls obtained for one title on another and affixing bandrolls on copies without the permission of the author. Given that the gravamen of these offences falls almost exclusively on publishers, it is not surprising that they have for the most part reacted strongly against the new amendment. Equally surprising is the fact that publishers mistakes or omissions made with respect to the procedure will ostensibly be punished with the same severity as that applied to the most serious pirate.

It is admitted that the bandrolls have been successful in stopping publishers from printing more copies of works than contracts with authors allow, and in stopping piracy for top-selling authors who obtain the necessary costly legal assistance. Publishers, however, are against compulsory bandrolls and the strong criminal sanctions included in the new amendment, particularly since these measures have generally failed to stem the flow of pirated editions of all but the top-selling works.

Relations between publishers and authors are never smooth anywhere. While they obviously need each other, they are fighting over the same pie. Threatening their respective pieces of this pie is the fact that Turkey is rife with copyright infringement, no less in the printed word than in music and software (so effective was the bandroll system for videos that the entire market, legal and illegal, was almost wiped out by the 1986 legislation and very little has been available since). According to Orhan Pamuk, the bulk of commercial print infringement comes in three forms: pure counterfeit books, usually printed by the numerous small print shops that abound in Turkish cities, but sometimes by other publishers with idle presses; books printed by authorized publishers in excess of the amounts agreed with authors; and the unauthorized printing of large segments of works by newspapers and magazines. Translations of foreign works are particularly hard hit by such practices, as foreign authors and publishers are even less able to police their royalties than local authors.

Many best-selling authors feel that bandrolls represent the only way to bring such practices to a halt. Some say that the well-orchestrated publisher opposition to bandrolls is self-serving, as it keeps non-competitive publishers afloat, and serves the status quo of infringement by newspapers and magazines. While there is no doubt that bandroll is not the ideal solution to a very real problem, as long as book pirates market their wares on the streets (and the pirated versions are usually literally on the streets and rarely sold in shops) and newspapers publish pirated texts with impunity, it looks to best-selling authors to be better than nothing. Provisions in the present Copyright Law making it an offence to reproduce copies in excess of the number agreed with the author (Article 73[4]) have been unsuccessful in stemming the flow of infringing books for a number of reasons, of which the itinerant nature of the distributors and the difficulty establishing the connection between publishers and infringing items are but a sample. Lawyers are often hesitant to take on these cases and police will of course not undertake to control the market of their own accord. Municipalities, reluctant to alienate their constituencies poorer readers, rarely take action against the street merchants. There are, of course, exceptions. The former Islamic mayor of Istanbul, Tayyip Erdogan, is said to have been active in enforcing laws against pirated books, and recently a stash of 20,000 long-term popular titles was reportedly uncovered in a raid on a warehouse in Istanbul. These books allegedly originated in a print shop in Adana in the south of the country (Hurriyet, May 17, 2000) and included local and foreign novels, Turkish textbooks and English language textbooks.

Under the present conditions, passing all books before the eyes of state officials is certainly courting censorship. Pro-bandroll authors say that censorship mechanisms reflecting the mentality of the above-cited paragraph abound in any case, and that bandrolls add nothing to the considerable arsenal of state censorship methods. No one in the publishing world, however, supports the draconian methods contained in the proposed amendment, and their severity can only imply that censorship may well be foremost in the drafters minds.

Ideally, bandrolls would continue to be available to authors who desire their application. It is important to remember, authors say, that the purpose of contemporary copyright law is to benefit authors, whose needs hefty fines payable to state coffers and imprisonment of publishers do little to serve. Attention focused in recent years on rightsholders such as Microsoft, for whom compensation commensurate to its alleged loss is unobtainable as a practical matter, and who would prefer ever-increasing criminal sanctions in any case, has distracted the public and lawmakers alike from this basic function of copyright law.

Arguably, the cause of freedom of expression, not to mention copyright, would be better served by mustering political and legal resources to remove the censorship and criminal provisions from the bandroll legislation altogether. It is doubtful that these provisions will avoid a legal challenge (whether under the European Human Rights Convention, the Berne Convention or possibly even the Constitution itself) in the near future in any case. The real issue of whether bandrolls are really necessary and effective could then be squarely faced.

In every era, copyright carries its own backpack of issues. Technology on the one hand, and the drive for knowledge-based development in countries such as Turkey, coupled with a growing feeling by many lawyers, scholars and legislators that copyright has begun to encroach upon the public domain to an unacceptable extent have combined to create a new perspective on the whole field of copyright law today.

The issue is access, and while the Internet is center stage, providing books of all kinds at affordable prices is also a serious and important challenge in countries like Turkey. Many argue that access to books can only be achieved in the absence of strict copyright law. This is short-sighted. Modern authors do indeed need copyright if they are to be afforded a living from their craft. However, the rising prices of textbooks, for example, have left governments of developing countries with scant alternatives to legislating broad educational exceptions to copyright law (which are also contained in the soon to be enacted amendments). The need for up-to-date textbooks, often way beyond the budgets of students in countries like Turkey, have spearheaded broad exceptions to copyright law. Better marketing strategies, such as providing less expensive editions of such works, by textbook publishers could save the ideology and the benefits of copyright law. While profits might be reduced by producing such editions for this rapidly growing market, a reduction of the legal fees incurred in trying to control piracy might well make up the difference. Failure to respond to this growing need, especially given the incipient groundswell against the rigor of copyright, could result in far greater losses than those experienced by today痴 piracy. Further criminalization of copyright law, particularly when applied to publishers, and a reversion to the copyright/censorship partnership will harm not only the image of copyright law, but of the countries who employ such tactics.

Given that authors and publishers have ostensibly thrown in their lot with modern copyright law (as they must do if they want to operate beyond their own national borders), legislators have a responsibility to make it work as intended. This is vastly preferable to risking violation of international law to achieve goals which in addition to being unattainable given the available technology, are completely out of sync with the needs and values of contemporary society. Structuring copyright law to provide adequate civil damages to those who actually suffer loss from piracy would encourage larger and more frequent printings of affordable editions of books (which can be done locally given today痴 technology) while expanding readership and reducing the profitability of pirated editions. Realistic copyright laws which serve social and developmental needs would also provide authors with more reliable support. Perhaps more important still, a stronger, more unified legitimate publishing industry may well provide the necessary bulwark against censorship and other restraints on the freedom of expression.

All this depends on the rule of law, and the creation of a culture of law based on compensation rather than criminalization. Freedom of expression is crucial to support the expression of unpopular words which need to be said. This has been said over and over again by the European Court on Human Rights. And as mentioned above, the Berne Convention itself may well have some bearing on the legality of a bandroll system within the framework of international copyright law. This has not been addressed by any judicial body to date, however.

As a man of law, Mr. Sezer has the potential to make all this understood and effectual. If he succeeds, the draconian bandroll provisions and their potential for censorship will be unnecessary on any works subject to copyright protection. If he doesn稚 succeed in his drive to instill the rule and culture of law, we all have much more to worry about.

Virginia Brown Keyder
JURIST Turkey Correspondent

Lecturer in Law
Bilgi University
Istanbul, TURKEY

June 1, 2000

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